Software License Agreement - CEC Telecom Co. Ltd. and MobileSoft Technology (Nanjing) Co. Ltd.
SOFTWARE LICENSE AGREEMENT
BETWEEN
CEC TELECOM CO., LTD.
AND
MOBILESOFT TECHNOLOGY (NANJING) CO., LTD.
(TRANSLATION)
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TABLE OF CONTENTS
Page
Number
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Article 1 Definitions................................................. 1
Article 2 Grant of License............................................ 3
Article 3 Intellectual Property Rights................................ 3
Article 4 Confidentiality Obligations................................. 4
Article 5 Representations, Warranties and Covenants of Party A........ 6
Article 6 Representations, Warranties and Covenants of Party B........ 6
Article 7 Notices..................................................... 7
Article 8 Effectiveness and Termination of Agreement.................. 8
Article 9 Liability for Breach of Agreement........................... 9
Article 10 Force Majeure............................................... 9
Article 11 Governing Law............................................... 10
Article 12 Dispute Resolution.......................................... 10
Article 13 Miscellaneous............................................... 10
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SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this "Agreement") is entered into in _________,
the People's Republic of China (the "PRC") on [September _______, 2005] by and
between CEC Telecom Co., Ltd. ("Party A"), with its address being at Floor 10,
China Electronics and Information Building, 6 Zhongguancun South Street, Haidian
District, Beijing, and its legal representative being Wu Zhiyang, and MobileSoft
Technology (Nanjing) Co., Ltd., with its address being at Floors 15-18, Minfang
Building, 189 Guangzhou Road, Nanjing, 210009, and its legal representative
being Jeanne M. Seeley. Party A and Party B are hereinafter collectively
referred to as the "Parties".
Whereas, Party B has developed relevant software to be used to operate such
functions on the mobile phones (each an "MP" and collectively "MPs") as mMMS,
mWapBrowser, WapStack1.2.1 or WapStack 2.0 ("Party B's Software", as further
defined herein below) and is the owner of Party B's Software and the
intellectual property rights therein.
Whereas, Party A has adopted certain MP products developed and designed by third
parties or independently developed by Party A based on SkyWorks, Philips and Ti
MP hardware platforms (not limited to such three kinds of platforms, subject to
further consultations between the relevant parties based on the actual
situation).
Whereas, Party A desires to use Party B's Software in the foregoing MP products
developed and designed by third parties and sold under Party A's owned brand
"CECT" (the "Licensed Products") and is willing to pay Party B software
licensing royalties ("Royalties").
NOW, THEREFORE, after friendly consultations and pursuant to the Contract Law of
the PRC and other relevant PRC laws and regulations, Party A and Party B hereby
reach agreement as follows:
ARTICLE 1 DEFINITIONS
In order to avoid any doubt, unless otherwise defined in other places herein,
the following terms shall have the meanings ascribed thereto below:
1.1 "Party B's Software" means the application software developed and owned by
Party B which is used to operate such functions on the MPs as receipt and
delivery of mobile multimedia messages and mWapBrowser, in particular, mMMS,
mWapBrowser and WapStack 1.2; and if Party A intends to obtain Party B's license
with respect to any software owned by or licensed to Party B other than Party
B's Software, the Parties shall execute separate supplemental licensing
provisions.
1.2 "Technical Documentation" means all the know-how, experiences, drawings,
requirement specifications, design specifications, encoding rule specifications,
source codes, testing directions, and other technical materials and information
in which the copyrights are owned by Party B and which are related to Party B's
Software, that are owned by Party B, related to Party B's Software and are of
reasonable commercial interests to Party B.
1.3 "IMEI No." means the International Mobile Equipment Identity ("IMEI") Number
issued by a neutral issuing agency authorized by the GSM Alliance ("the Notify
Body")
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based on the Testing Report of the FTA Certification Lab which is used to
identify an MP and shall be unique throughout the world.
1.4 "Delivery Quantity" means the sum of the quantity of the Licensed Products
supplied to Party A's agents by Party A (including both the products sold to end
users and the products not yet sold to end users) and the quantity of the
Licensed Products directly sold to end users by Party A or its affiliates.
1.5 "Improvement" means any enhancement of, or modification or amendment to any
part of Party B's Software at any version, or any work performed to increase the
scope of use, functions or any other features of Party B's Software.
1.6 "Derivative Work" means any technology or work product relating to Party B's
Software, developed or obtained by the Parties in connection with the
performance of this Agreement, including without limitation to:
(i) with respect to any content covered under any copyright interests or granted
copyright, any translation (including the translation into any other computer
language), modification, correction, addition, extension, upgrade, improvement,
compilation or abridgement thereof, or any work in any other form that has been
remanufactured or converted or adapted from any existing work product;
(ii) with respect to any content covered under any patent application or granted
patent, any improvement thereto; and
(iii) with respect to any content under the protection as a trade secret, any
new content developed from the existing trade secret, including any new content
that is entitled to the protection as copyright, patent and/or trade secret.
1.7 "Confidential Information" means any and all the proprietary or confidential
information, data, Technical Documentation, trade secrets or know-how that may
be provided by either Party to the other in written, oral, physical or digital
electronic form in connection with the performance of this Agreement, including
but not limited to, software, inventions, processes, formulae, technologies,
designs, patterns, database, computer programs, IP developments, business plans,
information about market situation, marketing, financial budgets and business,
business cooperation, commercial transactions, research materials, products and
product plans, services, customer information and customer lists. The Parties
hereby acknowledge and confirm that the foregoing confidential information is
owned by the disclosing Party, not publicly available and can bring economic
interests to the disclosing Party and is of value and that the disclosing Party
has taken appropriate actions to protect such information and data.
1.8 "Intellectual Property Rights" means all rights in any intellectual property
in any jurisdiction, including patent, trademark, copyright, proprietary
technique, trade secret, service mark, trade name, design, good will and
know-how, including the right to apply for the same, whether recordable,
recorded, registered or granted.
1.9 "Affiliate" means, with respect to either Party, a person which is
controlled by, or controls, or is under common control with such Party, whether
directly or indirectly, in each case, through the ownership of 50% or more of
the equity interest. For purposes of this definition, a "person" refers to an
individual, corporation, partnership, joint venture,
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enterprise, association, joint venture company, joint stock company, limited
liability company or legal person.
ARTICLE 2 GRANT OF LICENSE
2.1 Subject to the terms and conditions in this Agreement, Party B hereby grants
Party A a nonexclusive, nonsolely occupied and non-transferable license to use
Party B's Software within the term of this Agreement in accordance with this
Agreement (the "License"). Party B shall have the full right to grant any third
party a license to use Party B's Software and may use Party B's Software for its
own benefit at any time out of its own need, in each case, with no need to
obtain the consent from Party A or give notice to Party A.
2.2 Without written authorization or consent from Party B, Party A may not
license, or grant a license to, or permit any third party, to use or have any
right in Party B's Software.
2.3 If requested by Party A, Party B may provide Party A with such services as
technical support and training, which shall be subject to further consultations
(including as to the scope of services and fees) and written agreement between
the Parties.
2.4 After the effectiveness of this Agreement, if Party B or an Affiliate
thereof has improved or upgraded Party B's Software or developed a new version
thereof, the authorized use of such Improvement, upgrade or new version and the
payment for such use shall be subject to further consultations and written
agreement between the Parties.
ARTICLE 3 INTELLECTUAL PROPERTY RIGHTS
3.1 The Parties hereby acknowledge that Party B shall have the good and
exclusive ownership of the Intellectual Property Rights in, Party B's Software
at whichever version and any Improvement thereto, any work product developed,
generated or obtained by either Party in connection with the performance of this
Agreement within the term of this Agreement, irrespective of the form or media
in which it is expressed or saved, including but not limited to the Derivative
Work thereof, and the Technical Documentation and the Confidential Information
related thereto, and have the right to use such Intellectual Property Rights all
over the world, including the PRC, the right to apply to the relevant
authorities for the recording or registration of or a grant of a right with
respect to such Intellectual Property Rights in any other jurisdiction, and the
right to make any amendment or Improvement in any form to the foregoing
software, Improvement, work product, Technical Information and Confidential
Information of Party B. Party A hereby further acknowledge that in no case shall
Party A or any third party have the ownership of or Intellectual Property Rights
in any of the foregoing Party B's Software, Improvement, Derivative Work or
relevant Technical Documentation or Confidential Information, including such
right as to apply for, record, register or license the same.
3.2 Party A shall endeavor to take necessary actions to protect Party B's
Software from infringement and promptly notify in writing Party B of any
infringement upon Party B's Software or any challenge from any person to Party
A's use right with respect to Party B's Software as contemplated hereunder or
any claim of ownership on Party B's Software upon its discovery of the same, and
cooperate with Party B in the handling of such infringement, challenge or claim.
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3.3 Party B undertakes that it has the legal title to and Intellectual Property
Rights in Party B's Software and it has the right to provide Party A with
relevant Party B's Software and the Technical Documentation thereof and grant a
use right to Party A with respect to Party B's Software as contemplated
hereunder. Party B's Software and the Technical Documentation delivered to Party
A hereunder shall not constitute any infringement upon or impediment to any
rights or interests of any third party. Party B shall be responsible for
defending against or handling any liability, dispute, action or claim resulting
from any dispute with any third party due to Party B's delivery of any software
or Technical Documentation and shall indemnify Party A against any direct
economic loss caused thereby, including the damages determined in the final
judgment, decree or award or agreed by Party B in a written agreement. In order
to be indemnified by Party B as above, Party A shall promptly notify Party B of
and assist Party B to handle the relevant liability, dispute, action or claim.
However, if such liability, dispute, action or claim is caused by the improper
use of or unauthorized amendment to Party B's Software by either Party A or any
third party, Party B shall not be responsible for handling the same or
indemnifying Party A against the same.
3.4 Each Party agrees and confirms that any document, data and relevant
equipment furnished or delivered to it by the other Party may only be used to
effectuate the foregoing purposes and the furnishing Party shall retain the
ownership of and the Intellectual Property Rights in the technical secrets,
Technical Documentation and any other information contained in such document and
data. Nothing in this Agreement may be interpreted as the assignment to the
other Party from the furnishing Party of its Intellectual Property Rights in
such document or data, but only a permission to the other Party to use such
document, data and relevant equipment.
3.5 This Article shall survive the expiration or termination of this Agreement
for whatever reason.
ARTICLE 4 CONFIDENTIALITY OBLIGATIONS
4.1 The Parties hereby agree and warrant that within and after the term of this
Agreement, unless otherwise required for the performance of this Agreement or
otherwise provided herein, each Party shall not, and shall cause its employees
and service providers not, disclose to any third party any provision or content
of this Agreement or any content of any agreement, document, correspondence or
notice between the Parties in connection with the execution of this Agreement,
or permit the disclosure of any such provision or content in any leaflets,
literatures, or professional prints or any other media, vehicle or occasion.
4.2 The Parties hereby agree and warrant that any Confidential Information and
Technical Documentation provided or disclosed by either Party to the other shall
be used only for the purposes and uses contemplated hereunder. The Party
receiving any data or information (in such case the "Receiving Party") from the
other Party may not use any Confidential Information or Technical Documentation
for any unfair competition.
4.3 The Parties hereby agree and warrant that within and after the term of this
Agreement the Receiving Party shall take all necessary and reasonable actions to
keep the confidentiality of and properly maintain, all the Confidential
Information and Technical Documentation furnished or disclosed to it by the
other Party (the "Disclosing Party"), and without the prior written consent of
the Disclosing Party, unless otherwise required for the performance of this
Agreement, shall not for any purpose, disclose or divulge to any person
irrelevant to this Agreement or any third party, any Confidential Information,
Technical Documentation or any
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technical secret or data involved herein, or use the same for any purpose other
than those provided herein.
4.4 Notwithstanding the foregoing, the Parties hereby confirm that if the
Receiving Party is required by any law, any competent court, arbitral body or
any other governmental authority that has jurisdiction over it to disclose the
above-mentioned Confidential Information or Technical Documentation, the
Receiving Party may make such disclosure; provided however that, such disclosure
shall be limited to the scope and subject matter so required and subject to
prior written notice to the Disclosing Party.
4.5 The above restrictions shall not apply to the following data:
(a) any data or information that is disclosed to the Receiving Party by any
third party without breach of any confidentiality obligations hereunder;
(b) any information or data that is or becomes publicly known prior to
being disclosed to the Receiving Party not as a result of any action or inaction
of the Receiving Party;
(c) any information or data that is or becomes known to the Receiving Party
prior to the provision of the same by the Disclosing Party and can be located in
any document or record of the Receiving Party dated earlier than the disclosure;
(d) any data or information that is independently developed by the
Receiving Party without reference to any data or information provided by the
Disclosing Party as demonstrated by any document or any other strong evidence of
the Receiving Party; and
(e) any data or information that is published upon the written approval of
the Disclosing Party.
4.6 All the Confidential Information provided to one Party by the other
hereunder shall be expressly marked as "Confidential" in writing and any
Confidential Information that is disclosed in oral or visual form for the first
time shall be marked as "Confidential" in writing and notified to the other
Party of such fact within thirty (30) days as of such first disclosure.
4.7 The Parties hereby agree and warrant that any Technical Documentation
furnished by one Party to the other shall be the exclusive property of the
furnishing Party, and, upon the termination of this Agreement for whatever
reason, the Receiving Party shall (i) immediately return to the Disclosing Party
or any entity or individual designated thereby or (ii) at the request of the
Disclosing Party, completely destroy any and all the materials, documents and
disks related to any Confidential Information or Technical Documentation
furnished or disclosed by the Disclosing Party and any other vehicle on which
any of the foregoing is saved, that are in the possession or control of the
Receiving Party (the "Information"); and that unless otherwise provided herein,
any content of the Information shall be trade secret and the Receiving Party may
not reproduce any Information on any vehicle or retain any reproduction of any
Information; and further, upon the performance of the foregoing actions, the
Receiving Party shall deliver to the Disclosing Party a written certificate that
all the relevant Information has been returned or destroyed and none of the
Receiving Party or any of its current or former investors, directors, officers,
employees, agents, consultants or other representatives, or any of its
supervising authorities (if any) or affiliated companies or
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agencies or units holds any such trade secret or any other Information
containing any such trade secret.
4.8 The Receiving Party shall, upon the expiration of this Agreement or at any
time upon the request of the Disclosing Party, return all or any portion of the
Confidential Information of the Disclosing Party and may not retain any vehicle
related to any Confidential Information without the consent of the Disclosing
Party.
4.9 The Parties hereby recognize and acknowledge that any Confidential
Information and Technical Document owned by either Party are unique and
confidential data and information and any disclosure by either Party to any
third party of any such information or data without the consent from the
Disclosing Party will seriously damage the business or other interests of the
Party owning such data and information. In case of a breach or threatened breach
of any confidentiality obligations herein by either Party, the other Party shall
have the right to take any legal actions or any other lawful measures to protect
its own legal interests, including but not limited to, preventing by any lawful
means, or requesting the breaching Party to cease, such breach, early
terminating this Agreement or requesting the breaching Party to indemnify it
against all the direct economic loss caused by such breach.
4.10 Obligations set forth in this Article shall survive the expiration or
termination of this Agreement for whatever reason.
ARTICLE 5 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARTY A
5.1 Party A is a company duly established and validly existing under the laws of
the PRC and is in good standing and has obtained all the valid authorizations
for its execution and performance of this Agreement. The execution and
performance of this Agreement by Party A will not conflict with Party A's bylaws
or documents of similar nature, applicable laws, or any contract/agreement or
commitment between Party A and any third party, or any other document or
provision binding upon Party A.
5.2 At the execution of this Agreement, there is not any action or
administrative proceeding pending before any governmental or judicial authority,
against Party A or involving Party A's assets or business that may materially
endanger or have an adverse effect on Party A's ability to perform this
Agreement.
5.3 Party A hereby agrees that after one week as of the formal launch of one
model of MPs using Party B's Software, including such product as Party A's brand
name MPs, OEM MPs or ODM MPs, it shall notify Party B in writing of the actual
model of such MPs and at the same time Party B shall provide Party A with use
instructions. After confirmation by Party A of such use instructions, Party A
shall lend Party B one MP equipped with complete and stable software and
hardware functions for Party B to provide follow-up technical support services
for Party B's Software installed in such model of MPs.
5.4 Party A hereby agrees that Party B may publicize in any manner the fact that
Party A has adopted Party B's Software in the Licensed Products.
ARTICLE 6 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARTY B
6.1 Party B is a company duly established and validly existing under the laws of
the PRC and is in good standing and has obtained all the valid authorizations
for its execution and
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performance of this Agreement. The execution and performance of this Agreement
by Party B will not conflict with Party B's bylaws or documents of similar
nature, applicable laws, or any contract/agreement or commitment between Party B
and any third party, or any other document or provision binding upon Party B.
6.2 At the execution of this Agreement, there is not any action or
administrative proceeding pending before any governmental or judicial authority,
against Party B or involving Party B's assets or business that may materially
endanger or have an adverse effect on Party B's ability to perform this
Agreement.
6.3 Party A hereby expressly acknowledges and agrees that (i) Party B does not
warrant that Party B's Software hereunder [or services (including technical
support or training)] is [are] fit for any particular purpose not disclosed by
Party A, (ii) Party B does not warrant that Party B's Software is free from any
defect or all the defects in Party B's Software will be cured immediately, or
(iii) to the extent permitted by applicable laws and regulations, any
representations or warranties not made herein by Party B, whether expressly or
impliedly, are hereby disclaimed by Party B.
ARTICLE 7 NOTICES
7.1 The Parties hereby confirm that any document or information in connection
with this Agreement as well as any communication between the Parties shall be
delivered to the Party to which the same is addressed by personal delivery,
express mail service, registered mail, fax or email at the address set forth
below:
If to Party A:
CEC TELECOM CO., LTD.
Floor 10, China Electronics and Information Building
6 Zhongguancun South Street, Haidian District, Beijing
Attention: _________________
Postal Code: _________________
Telephone: _________________
Fax: _________________
Email: _________________
If to Party B:
MOBILESOFT TECHNOLOGY (NANJING) CO., LTD.
Floors 15-18, Minfang Building, 189 Guangzhou Road, Nanjing
Attention: _________________
Postal Code: 210009
Telephone: _________________
Fax: _________________
Email: _________________
7.2 Any document, information, notice or demand shall be deemed to have been
made, (a) upon delivery, if delivered by fax as evidenced by the transmission
report, (b) upon delivery,
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if sent by email, (c) seven (7) days as from delivery, if delivered by express
mail services or registered mail (with postage paid fully), or (d) upon
acknowledgement of receipt, if delivered by person.
7.3 In case of a change to the address or means of contact of either Party, it
shall notify the other Party in writing as set forth above seven (7) days prior
to the use of such new address or means of contact.
ARTICLE 8 EFFECTIVENESS AND TERMINATION OF AGREEMENT
8.1 This Agreement shall take effect upon being affixed with the signature of
the authorized representative and the company seal of, each of Party A and Party
B. The Agreement shall be in effect for 2 years, unless in the case of early
termination or extension. Subject to Party A's written application for extension
and Party B's written approval thereto one month prior to the expiration of the
effective term of this Agreement, this Agreement may be extended accordingly.
The term of such extension and the rate of the Royalties, technical support fees
and training fees during such extension shall be redetermined by the Parties
then subject to further negotiations.
8.2 Either Party shall have the right to choose to forthwith terminate this
Agreement if such Party has sufficient firm evidence that:
(a) the other Party is unable to perform any of its material obligations
hereunder;
(b) the operating status of the other Party is deteriorating seriously,
including the commencement of bankruptcy, liquidation or dissolution proceedings
against the other Party; or
(c) the other Party fails to pay any of the [project research and development
fees, Royalties, technical support and maintenance fees or training fees]
pursuant to this Agreement and has been more than three months in arrears with
the payment of the same.
The Party that intends to terminate this Agreement based on any of the foregoing
reasons (the "Terminating Party") shall promptly notify the other Party of its
intention in writing. Where the non-terminating party provides an economic
guarantee in favor of the Terminating Party that is acceptable to the
Terminating Party, the Terminating Party shall resume its performance of this
Agreement. Where the term of such economic guarantee expires prior to the
non-terminating Party's resumption of its ability for the performance of this
Agreement within the reasonable period of time allowed for it, the Terminating
Party may terminate this Agreement upon the expiration of such economic
guarantee.
8.3 This Agreement may be terminated by mutual agreement between the Parties.
8.4 Either Party may terminate this Agreement by written notice to the other
Party if
(a) either Party has breached this Agreement so that the purposes of this
Agreement are rendered unable to be effectuated and the breaching Party fails to
cure such breach within thirty (30) days as of its receipt of a written notice
from the other Party;
(b) either Party has transferred its rights, obligations or property under this
Agreement to any third party other than its Affiliate without the prior written
consent of the other Party;
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(c) a force majeure event has occurred so that the purposes of this Agreement
are rendered unable to be effectuated or the performance of this Agreement is
rendered impossible;
(d) either Party has discovered that any representation or warranty by the other
Party hereunder is false in any aspect and even after such Party has pointed out
the same the other Party fails to cure the same accordingly pursuant to the
requirements of such Party; or
(e) any other circumstance specified herein upon the occurrence of which this
Agreement may be terminated or cancelled.
8.5 Upon any termination of this Agreement as provided herein, Party B shall
reserve its right to terminate, at its sole discretion, the license granted to
Party A to use Party B's Software in any of its Party A's MPs, including but not
limited to, any of Party A's MPs manufactured prior to such termination.
ARTICLE 9 LIABILITY FOR BREACH OF AGREEMENT
9.1 In case Party A fails to pay Party B any Royalties in accordance with
Article 1.6 of Appendix 1 hereto, in addition to immediately paying Party B such
Royalties, Party A shall also pay Party B liquidated damages equal to 0.5% of
the Royalties for each day beginning from the day immediately after the date on
which such Royalties fall due; provided however that, the liquidated damages in
aggregate may not exceed 10% of the Royalties payable.
9.2 In case either Party fails to perform any of its obligations hereunder or
its performance of any of its obligations hereunder fails to satisfy the
requirements of this Agreement, or any of its statements, representations,
warranties is false or inaccurate, such Party shall be deemed to have breached
this Agreement and the non-breaching Party shall have the right to have the
breaching Party perform its obligations and indemnify the non-breaching Party
against the loss caused by such breach. To the extent permitted by applicable
laws and regulations, the breaching Party shall be liable only for the direct
loss or damage suffered by the non-breaching Party and not for any indirect,
incidental, special or punitive loss or damage suffered by the non-breaching
Party, including but not limited to, loss of profit or good will or any other
intangible property, and the indemnity shall not exceed the total amount of the
Royalties paid by Party A hereunder.
ARTICLE 10 FORCE MAJEURE
10.1 "Force Majeure" means an earthquake, typhoon, epidemic, flood, windstorm,
tide or any other act of god, war, riot, unforeseeable economic disaster, or any
interruption or impediment in transportation or any other facilities, or any
other event that is unforeseeable or unavoidable by or beyond the control of
either Party or is agreed by both Parties as an event of exemption, including
any change in any PRC law that will have a material effect on the performance of
this Agreement.
10.2 The Party encountering the Force Majeure shall notify the other Party of
the occurrence of such Force Majeure in writing, and shall within fifteen (15)
days, provide the other Party with the details of such Force Majeure, relevant
certificates issued by the relevant authorities and a report on its inability to
perform its obligations hereunder, whether in whole or in part, and its reasons
for the need to extend its performance of this Agreement, and shall take all
steps possible to mitigate losses caused by such Force Majeure. In the case of a
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Force Majeure event, neither Party shall be liable for any damage suffered by or
any increase in expenses and losses incurred by the other Party caused by the
inability of either Party to perform this Agreement or the delay by either Party
in its performance of this Agreement. The Party claiming the occurrence of a
Force Majeure event shall take appropriate actions to mitigate or eliminate the
impact of such Force Majeure event and endeavor to resume its performance of its
obligations hereunder affected by such Force Majeure event within the shortest
period possible.
10.3 Upon the occurrence of a Force Majeure event, Party A and Party B shall
consult with each other to find a reasonable solution and shall make all efforts
to mitigate the consequence of such Force Majeure event.
10.4 Where either Party is rendered unable to perform any of its obligations
hereunder for thirty (30) consecutive days due to the occurrence of such Force
Majeure event, either Party may terminate this Agreement.
ARTICLE 11 GOVERNING LAW
11.1 This Agreement shall be governed by and construed in accordance with the
laws of the PRC.
ARTICLE 12 DISPUTE RESOLUTION
12.1 Any dispute arising from or in connection with this Agreement shall be
resolved by the Parties through good faith negotiations. In case any dispute
fails to be so resolved within sixty (60) days as of the delivery by either
Party of a request for such negotiations, either Party may submit such dispute
to China International Economic and Trade Arbitration Commission for arbitration
in Beijing in accordance with the then effective arbitration rules of such
Commission. An arbitral award by such Commission shall be final and binding upon
both Parties. Both Parties hereby ensure that such a final arbitral award shall
be enforced without any delay.
12.2 Unless otherwise agreed between the Parties, any court shall not have
jurisdiction over any dispute hereunder.
12.3 During the period when any dispute between the Parties is under
arbitration, each of Party A and Party B shall continue with the performance of
its respective obligations and responsibilities hereunder other than the matter
in dispute.
ARTICLE 13 MISCELLANEOUS
13.1 Any amendment or modification to this Agreement shall be subject to the
friendly negotiations between the Parties and shall not take effect unless the
Parties have executed a written agreement with respect thereto.
13.2 In case any provision in this Agreement is held illegal, invalid or
unenforceable, the legality, validity or enforceability of the remaining
provisions herein shall not be affected or prejudiced in any aspect thereby.
13.3 Unless otherwise agreed between the Parties or expressly required by any
law of the PRC, any waiver by either Party of any one or more of its rights
hereunder shall not operate as its waiver of any other right hereunder or any
other waiver of the same right or rights in
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other circumstances and any delay by either Party in its exercise of any one or
more of its rights hereunder shall not operate as its waiver of or prejudice its
exercise of the same right or rights.
13.4 Without the prior written consent of the other Party, either Party may not
assign any of its rights, obligations or property hereunder to any third party
other than its Affiliate. Where either Party needs to assign any of its rights,
obligations or property hereunder to any of its Affiliates (the "Assignment"),
it shall notify the other Party in writing in advance but need not obtain the
consent of the other Party. At the same time, the assigning Party shall provide
the non-assigning Party with evidence that the intended assign is an Affiliate
of the assigning Party. Such Assignment shall take effect as of the receipt by
the non-assigning Party of the said written notice and evidence from the
assigning Party.
13.5 This Agreement shall constitute the entire agreement between the Parties
with respect to the subject matter hereof and shall supersede any and all the
understandings, agreements or discussions between the Parties with respect to
the subject matter hereof.
13.6 The Appendices hereto, including Appendix 1: Royalties and the Payment and
Appendix 2: Statement of the Royalties for Party B's Software, shall form an
integral part hereof and have the equal legal force as this Agreement.
13.7 This Agreement shall be executed in six (6) counterparts, with each Party A
and Party B to hold three and each counterpart shall have the equal legal force.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first
written above:
PARTY A: CEC TELECOM CO., LTD. (affixed with company seal)
Legal Representative: Wu Zhiyang
Address: Floor 10, China Electronics and Information Building, 6 Zhongguancun
South Street, Haidian District, Beijing
Authorized Representative: Yang Changzheng
Dated: September 29, 2005
PARTY B: MOBILESOFT TECHNOLOGY (NANJING) CO., LTD. (affixed with company seal)
Legal Representative: Jeanne M. Seeley
Address: Floors 15-18, Minfang Building, 189 Guangzhou Road, Nanjing, 210009
Authorized Representative: Liu Bing
Dated: October 8, 2005
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APPENDIX 1 ROYALTIES AND PAYMENT
Article 1 Royalties
1.1 In consideration of Party A's use of Party B's Software in the License
Products, Party A shall pay Party B the Royalties in accordance with the
following provisions and the Royalties payable to Party B shall be calculated on
the basis of the formula set forth in the table below:
Party B's Software
Aggregate quantity of the Licensed Rate of the Royalties (including the VAT
Products (in unit) sold out at 17%)
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0~200,000 RMB3.8 per unit
> 200,000 RMB3.4 per unit
1.2 The Parties acknowledge that the Delivery Quantity and the Royalties payable
hereunder shall be reviewed and settled on a quarterly basis, or in other words,
every three months. The Royalties shall be calculated on the basis of the
aggregate Delivery Quantity and the rate of the Royalties. The Royalties shall
accrue from the first day on which the first model of the Licensed Products
using Party B's Software is launched and shall be settled by the quarter. Within
the first Seven (7) days of each quarter, Party A shall provide Party B in
writing with a statement of the accurate Delivery Quantity for the previous
quarter (the "Statement") and the corresponding list of IMEI Nos and shall pay
Party B all the Royalties payable for the previous quarter in accordance with
this Article 1.6. Party B shall review the Royalties payable for the previous
quarter based on the Statement provided by Party A and the IMEI Nos of Party A's
MPs.
1.3 Party A must ensure that its Statement is true and reliable and that each
IMEI No. of each of the Licensed Products provided to Party B shall be the
unique number marked on such product for identification.
1.4 Party B shall have the right to understand and obtain from the designers of
the Licensed Products or the suppliers of Party A's chips, parts and components,
the relevant information regarding Party A's purchase and the Delivery Quantity
using Party B's Software, and use the same as reference for reviewing and
calculating the Royalties payable.
1.5 In case Party B discovers that the difference between the Delivery Quantity
reflected in the Statement provided by Party A and the actual Delivery Quantity
known by Party B through the information obtained by Party B from the designers
of the Licensed Products or the suppliers of Party A's chips, parts and
components exceeds 100 units, or that any of Party A's MP using Party B's
Software is used in the market does not fall into the scope of the IMEI Nos
provided by Party A, Party B shall notify Party A in writing and Party A shall,
upon its receipt of such notice, immediately conduct investigations, review and
verifications (the "Verifications") and provide Party B with the result of the
Verifications and relevant
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evidence. The Parties confirm that the above difference shall be handled as
follows depending on the result of the Verifications acknowledged by the
Parties:
(a) If such difference is caused by any negligence in Party A's operations,
including any error in calculation, and Party A has paid the Royalties for such
portion of the Licensed Products not reflected in the Statement or not covered
under the IMEI Nos provided by Party A to Party B (the "Omitted MPs"), Party A
shall provide relevant evidence therefor, or if the Royalties for the Omitted
MPs have not been paid by Party A, then Party A shall, upon Party B's written
confirmation of the same, Party A shall pay Party B the Royalties for the
Omitted MPs; or
(b) If the Verifications indicate that Party A has not paid the Royalties, then
Party A shall, within fourteen (14) days as of its receipt from Party B the
written notice for the payment of the Royalties, pay Party B the Royalties for
such Omitted Royalties in accordance with Article 1.1 and Article 1.6 of this
Appendix.
1.6 The Parties agree and confirm that they will, within the weekdays of the
first week of each quarter, calculate and verify the Delivery Quantity and the
Royalties payable for the previous quarter (the previous three months) and Party
A shall, within five (5) working days as of its receipt of the special VAT
invoice from Party B, pay Party B the Royalties by remitting the same through
wire transfer to the following account of Party B or any other account
designated by Party B in writing:
Name of Account Owner: MobileSoft Technology (Nanjing) Co., Ltd.
Bank of Deposit: Business Outlet of Jiangsu Branch, Bank of China
RMB Bank Account Number: 044130535612809301
Article 2 Right of Auditing
2.1 Party B shall have the right to appoint an independent accounting firm
designated by Party B or mutually recognized by Party A and Party B in
writing (the "Auditor") to conduct audits (the "Audit") during normal
working hours on the relevant records about the use of Party B's Software
in the Licensed Products. The purpose and scope of the Audits are mainly to
inspect and verify: (1) the quantity of the Licensed Products using Party
B's Software; (2) the accuracy of the information furnished by Party A to
Party B pursuant to Article 1.2 of this Appendix, and whether Party A has
paid the full amount of the Royalties to Party B. The representatives of
the Auditor shall comply with the generally accepted accounting principles
when conducting the Audits, and take care to protect the confidentiality of
Party A's information, and abide by Party A's reasonable security
requirements when conducting the Audits at Party A's premises. If the
results of the Audits show that Party A has not paid Party B the full
amount of the Royalties, Party A shall be deemed to be in default and such
default shall be handled pursuant to Article 9 of this Agreement. In
addition, Party A shall pay Party B the Royalties pursuant to Article 1.6
of this Appendix within two weeks (14 days) as of its receipt of Party B's
notice for the payment of the Royalties.
2.2 The Audits under this Article shall be conducted no more than once every
six months, and the expenses for the Audits shall generally be borne by
Party B. However, if the Audits indicate that as of the date of the Audits
the shortfall in the payment of the
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Royalties exceed 50% (including 50%) of the total amount of the Royalties
payable to Party B by Party A, all expenses for the Audits shall be borne
by Party A.
2.3 Party A shall not, without due cause, deny, withhold or delay the grant of
a written consent to Party B with respect to Party B's designation of the
accounting firm. Where Party B delivers a written notice to Party A
requesting Party A to recognize the accounting firm designated by it, Party
A shall provide its feedback and confirmation within seven (7) days as of
its receipt of such notice. Party A's failure to provide any feedback
within the above period shall be deemed as acceptance to Party B's request.
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APPENDIX 2 STATEMENT OF THE ROYALTIES FOR PARTY B'S SOFTWARE
STATEMENT OF THE QUANTITY OF THE PRODUCTS OF __________ (PARTY A) USING THE
SOFTWARE OF MOBILESOFT TECHNOLOGY (NANJING) CO., LTD. (PARTY B)
Title of Contract: __________________ Title of Contract: _____________________
Party A: ____________________________ Party B: _______________________________
Calculation Frequency of the Time of Execution of the
Royalties ___________________________ Contract: ______________________________
Party B's Commercial
Period Covered: _____________________ Representative: ________________________
Time of 2005
Party B's Product --------------------
Brand Model Software Used Launch Items Q1 Q2 Q3 Q4 Total
----- ----- ------------- ------- ---------- --- --- --- --- -----
IMEI No.
Range
Quantity
Unit Price
Amount
IMEI No.
Range
Quantity
Unit Price
Amount
Quantity
Total Amount
Note: Please attach hereto a separate list of the IMEI Nos of the relevant
products.
Remark: Party A warrants that the data provided above are true, accurate and
valid.
Finance Representative of Party A: (Signature) Title: Date: Tel.:
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Commercial Representative of Party A: (Signature) Title: Date: Tel.:
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Company Seal: Date:
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